International Ladies' Garment Workers' Union v. National Labor Relations Board/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting in part.

I agree that, under the statutory scheme, a minority union does not have the standing to bargain for all employees. That principle of representative government extends only to the majority. But where there is no majority union, I see no reason why the minority union should be disabled from bargaining for the minority of the members who have joined it. Yet the order of the Board, now approved, enjoins petitioner union from acting as the exclusive bargaining representative 'of any of the employees, and it enjoins the employer from recognizing the union as the representative of 'any of its employees.'

We have indicated over and again that, absent an exclusive agency for bargaining created by a majority of workers, a minority union has standing to bargain for its members. In Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 549, note 6, 57 S.Ct. 592, 600, 81 L.Ed. 789, the Court quoted with approval a concession that 'If the majority of a craft or class has not selected a representative, the carrier is free to make with anyone it pleases and for any group it pleases contracts establishing rates of pay, rules, or working conditions.'

That case was under the Railway Labor Act. But it has been followed under the National Labor Relations Act. In Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126, a union, the Brotherhood of Electrical Workers, was allowed to act as a bargaining representative for the employees who were its members, even though they were a minority. The Court said, ' * *  * in the absence of such an exclusive agency the employees represented by the Brotherhood, even if they were a minority, clearly had the right to make their own choice.' Id., 305 U.S. 237, 59 S.Ct. 220. Maintenance of the status of a minority union, until an election was held, might well serve the purpose of protecting commerce 'from interruptions and obstructions caused by industrial strife.' Id., 305 U.S. 237, 59 S.Ct. 220. A decree requiring the employer to cease recognizing the Brotherhood as the exclusive representative of its members was modified:

'The contracts do not claim for the Brotherhood exclusive     representation of the companies' employees but only      representation of those who are its members, and the      continued operation of the contracts is necessarily subject      to the provision of the law by which representatives of the      employees for the purpose of collective bargaining can be      ascertained in case any question of 'representation' should      arise. * *  * We construe (the order) as having no more effect than to provide that there shall be no interference with an      exclusive bargaining agency if one other than the (union)      should be established in accordance with *  *  * the Act.' Id.,      305 U.S. 239, 59 S.Ct. 221.

It was in that tradition that we recently sustained the right of a minority union to picket peacefully to compel recognition. National Labor Relations Board v. Drivers Local Union No. 639, 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710. There a minority union sought to compel exclusive representation rights. To be sure, this Court recognized in that case that 'tension exists between * *  * (the) right to form, join or assist labor organizations and (the) right to refrain from doing so.' Id., 362 U.S. 280, 80 S.Ct. 710. But when a minority union seeks only to represent its own, what provision of the Act deprives it of its right to represent them, where a majority have not selected another union to represent them?

Judge Learned Hand in Douds v. Local 1250, 2 Cir., 173 F.2d 764, 770, 9 A.L.R.2d 685, stated that 'the right to bargain collectively and the right to strike and induce others to do so, are derived from the common-law; it is only in so far as something in the Act forbids their exercise that their exercise becomes unlawful.' In that case a minority union was recognized as having standing in a grievance proceeding outside the collective bargaining agreement, even where a majority had chosen another union. See American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189.

Honoring a minorityu nion-where no majority union exists or even where the activities of the minority union do not collide with a bargaining agreement-is being respectful of history. Long before the Wagner Act, employers and employees had the right to discuss their problems. In the early days the unions were representatives of a minority of workers. The aim-at least the hope- of the legislation was that majority unions would emerge and provide stabilizing influences. Yet I have found nothing in the history of the successive measures, starting with the Wagner Act, that indicates any purpose on the part of Congress to deny a minority union the right to bargain for its members when a majority have not in fact chosen a bargaining representative.

I think the Court is correct insofar as it sets aside the exclusive recognition clause in the contract. I think it is incorrect in setting aside the entire contract. First, that agreement secured valuable benefits for the union's members regarding wages and hours, work standards and distribution, discharge and discipline, holidays, vacations, health and welfare fund, and other matters. Since there was no duly selected representative for all the employees authorized in accordance with the Act, it certainly was the right of the employee union members to designate the union or any other appropriate person to make this contract they desired. To hold the contract void as to the union's voluntary members seems to me to go beyond the competency of the Board under the Act and to be unsupported by any principle of contract law. Certainly there is no principle of justice or fairness with which I am familiar that requires these employees to be stripped of the benefits they acquired by the good-faith bargaining of their designated agent. Such a deprivation gives no protection to the majority who were not members of the union and arbitrarily takes from the union members their contract rights.

Second, the result of today's decision is to enjoin the employer from dealing with the union as the representative of its own members in any manner, whether in relation to grievances or otherwise, until it is certified as a majority union. A case for complete disestablishment of the union cannot be sustained under our decisions. While the power of the Board is broad, it is 'not limitless.' National Labor Relations Board v. District 50, United Mine Workers of America, 355 U.S. 453, 458, 78 S.Ct. 386, 389, 2 L.Ed.2d 401. Thus a distinction has been taken between remedies in situations where a union has been dominated by the employer and where unions have been assisted but not dominated. Id., 355 U.S. 458-459, 78 S.Ct. 389-390.

The present case is unique. The findings are that both the employer and the union were in 'good faith' in believing that the union represented a majority of the workers. Good-faith violations of the Act are nonetheless violations; and the present violation warrants disestablishment of the union as a majority representative. But this good-faith mistake hardly warrants full and complete disestablishment, heretofore reserved for flagrant violations of the Act. Its application here smacks more of a penalty than of a remedial measure.

I think this union is entitled to speak for its members until another union is certified as occupying the bargaining field. That is its common-law right in no way diluted or impaired by the Act.